Chapter 6 - General Legal Principles Flashcards Preview

C13 Insurance Against Liability > Chapter 6 - General Legal Principles > Flashcards

Flashcards in Chapter 6 - General Legal Principles Deck (63)
Loading flashcards...
1
Q

Define proximate cause

A

The effective cause, there must be an uninterrupted unfolding of events without the intervention of another cause.

2
Q

If there is another cause interrupting the proximate cause, what defence could be used?

A

Remoteness of Damage

3
Q

What case set the precedent for proximate cause?

A

Scott v. Shepherd

Defendant threw a lit firecracker into a crowded market where it fell on a stall, the occupier through it away. It eventually exploded and causes damage. The individual who lit the firecracker was found liable.

4
Q

What was the relevance of Laperriere v. The King?

A

Reinforced proximate cause.

The army left explosives and it should have been foreseeable that they could result in damage.

5
Q

What was the relevance of Beaudoin v. TW Hand Fireworks?

A

Reinforced remoteness of damage.

Defendant had negligently left a firework around, however an employee was ordered to dispose of it. The employee lit the firecracker and caused damage.

Therefore, leaving the firecracker could not have been the proximate cause.

6
Q

What is a joint tortfeasor?

A

When two or more people commit a wrongful act (tort) together.

7
Q

What if the fault of joint tortfeasors is indivisible?

A

The plaintiff may choose who to collect from. If it can be divided, the court may hold each defendant liable for part of the damage. That plaintiff will be responsible for the entire judgment regardless of liability.

8
Q

How could one of the joint tortfeasors mitigate the amount to pay during judgment?

A

They may sue and seek contribution from the other tortfeasors that share fault.

In practice, when the one tortfeasor is accused they will bring third party suits against the other tortfeasors.

Plaintiffs will contribute percentages of damages based on contributory negligence.

9
Q

What does solidary obligation in Quebec indicate?

A

Any one defendant may be liable for the entire share of the judgment. It is essentially the Quebec equivalent of joint and several liability.

The law may determine the contribution owed by each party that would be at fault.

10
Q

What is vicarious liability?

A

Responsibility for the acts of others.

11
Q

What is the relationship between a principal and agent?

A

The agent will act on behalf of another while the principal would be responsible for the acts.

12
Q

What are the four ways in which agency can be created?

A
  • By contract (express)
  • By ratification
  • By estoppel
  • By necessity
13
Q

Explain how agency is created by contract

A

A relationship is forced by principal and agent through contract, the same rules that apply to other contracts apply to this.

The principal assumes liability for the acts of the agent and any authority which arises from operation of the contract.

14
Q

Explain how agency is created by ratification

A

An agent may act on behalf of a principal without a contract in place. If the principal then later accepts the actions of the agent, ratification has occurred. The principal is now bound to the actions of the agent.

15
Q

Explain how agency is created by estoppel

A

When a potential insured has relied on representations and assumed them to be true, even if they are not. A principal may agree to allow an agent to act when however, not authority has been given or is permissible to be given.

16
Q

Explain how agency is created by necessity

A

In an urgent situation, there may not be an opportunity for a principal to grant authority to an agent. The law allows that person to act as an agent.

17
Q

How does liability change if the agent breaches the contract or agreement?

A

The principal may sue the agent. Agents would be held liable if they are improperly identified, the principal does not exist and when the agent exceeds the conferred/apparent authority.

Principals are liable for any tort committed by the agent while the agent is acting on behalf of the principal.

18
Q

What two ways may end a contract between an agent and principal?

A
  • A time limit on the contract

- Terminated on agreement between the two parties

19
Q

What does CCQ Article 2130 outline?

A

A mandate is a contract by which a person, the mandator; empoyers another person, the mandatary; to represent him in the performance of a juridical act with a third person

Mandate - Contract
Mandator - Principal
Mandatary - Agent

20
Q

Who is liable for a mandate?

A

The mandator is liable for all obligations contracted by the mandatary

21
Q

How does professional liability and personal liability differ for a mandatary?

A

There is no personal liability when acting in a professional capacity, however the personal capacity they are still liable for.

22
Q

What is the relevance of Lockhart v. CPR?

A

An employee used his personal vehicle while out on company business although not permitted. An accident occurred which damaged a third party. The court decided that the employer, not the employee was responsible for the actions of the employee.

23
Q

Is the employer liable if the employee goes about completed their role in a forbidden way?

A

Yes, as long as they are still completing what they were hired to do.

24
Q

Is the employer responsible for non-work related acts of their employee?

A

No.
“A frolic of his own”.
Personal negligence is not the responsibility of the employer.

25
Q

How does liability respond to an employee delegating their authority to another party without authority to do so?

A

The employer cannot be held responsible for that person’s negligence.

If the employer is held liable, the employer may sue the employee.

26
Q

How does liability differ for independent contractors?

A

A contractor is assigned to complete the work but how the work is completed is up to them. As a result of this, if the method of which the contractor completes the work causes damage; the contractor will be liable and not the employer.

27
Q

What is a general contractor?

A

They hire and coordinate other independent contractors to complete the work.

28
Q

What is a subcontractor?

A

A contractor hired by a general contractor to complete work.

One that provides a service or material.

29
Q

What is the title of one hired by a subcontractor?

A

A sub subcontractor.

30
Q

Who is liable for the work of subcontractors?

A

Typically, the general contractor.

31
Q

What are the three exceptions to the rules of contractor liability?

A
  • Dangerous work is undertaken
  • Unlawful work is done
  • The principal interferes with the contractor
32
Q

Outline the dangerous work exception

A

If a specialist firm is hired by a general contractor to complete dangerous work, that firm would share responsibility with the general contractor

33
Q

Outline the unlawful work exception

A

The law does not support the party completing unlawful work. Typically, this is not recoverable under a liability policy.

34
Q

Outline the interference exception

A

If a general contractor ceases to become truly independent due to interference by a principal who insists the work be done a particular way.

35
Q

Explain the significance of Davie Shipbuilding v. Cargill Grain

A

It outlines the interference exception.

Cargill attempted to sue Davie due to the collapase of a warehouse that they had built. It was dismissed due to the warehouse being built by specifications f Cargill’s consulting engineers, Davie was simply following their instructions.

36
Q

Where does liability for municipalities come from?

A

Generally, statute law.

37
Q

What are the three types of negligent acts?

A
  • Misfeasance
  • Nonfeasance
  • Malfeasance
38
Q

Define misfeasance

A

The improper performance of something that is legal to do.

39
Q

Define nonfeasance

A

The omission to perform duties which by law one is bound to do. In other words, it is the failure to do something that ought to be done.

40
Q

Define malfeasance

A

An act which in itself is unlawful and is conducted by someone in an official capacity as an official duty.

41
Q

What are the typical time limits to place a claim for work performed by the municipality?

A

Seven, ten or fifteen days

42
Q

What is the significance of Norwell v. Toronto?

A

The person advised the municipality orally within the prescribed time and had been told to do nothing until contacted by the municipality, the municipality was not prevented from using the limitation period defence.

43
Q

How have nuisance claims for water or sewage escape changed in Ontario?

A

Municipalities have immunity from such a suit

44
Q

How does negligence apply for Quebec municipalities?

A

They are liable for any tort

45
Q

What did Laurentide Motels v. Ville de Beauport have to decide?

A

If civil liabilities with firefighting should be governed by private or public law.

Using Anns v. Merton London Borough Council and City of Kamloops v. Nielsen; it was established that municipalities cannot be responsible for policy decisions.

If a municipality acts within their discretionary powers, they are subject to civil law standards.

46
Q

In which province is a standard form required for the relationship between tenants and landlords?

A

Quebec

47
Q

What does tenants legal liability outline?

A

The relationship of liability between the landlord and tenant.

A tenant may be held responsible if a loss is due to their negligence. It may be specifically stated that they are not liable, if it is not stated, the tenant assumed all liable due to negligence.

48
Q

Explain the relevance of United Motors Service Inc. v. Hutson.

A

The tenants maintained a garage and cleaned oily deposits using gasoline. A fire ultimately emerged and the Supreme Court found the tenants liable for the loss due to negligence and the lease did not relieve them from losses against fire.

They were able to subrogate against the tenant due to the tenant not paying premium.

49
Q

How did subrogation apply in Pyrotech Products Ltd. v. Ross Southward Ltd.?

A

Since the tenant paid for part of the premium, subrogation was not an available option.

50
Q

What could a landlord insurer provide to a tenant lease to prevent responsibility for fire losses?

A

A waiver of subrogation

51
Q

What is a class action?

A

A group of people pursuing legal action for the same reason

52
Q

Define class action member

A

A person being part of a group on whose behalf a person brings or intends to bring a class action.

53
Q

What are the two general rules in which class actions may be brought?

A
  • Each member of the class has the exact same interest, not just a similar interest

AND

  • The claim is against a discernible fund or asset existing for the benefit of the class
54
Q

What are the three main points of the Act Respecting Class Actions in Quebec?

A

1) Prior authorization of the Supreme Court must be obtained. Plaintiff members must prove the group shares an interest in identical or similar questions of law or fact. Court must have the opinion that members can represent the group adequately. It must be brought within three months or it may be found invalid.
2) Every final judgment describes the group and binds the members who have not requested exclusion from the group. The court orders collective recovery if the evidence produced enables the total amount of the claim of the members to be accurately established. It determines the amount owed
3) Judgment ordering the collective recovery of the claim orders the debtor either to deposit the established amount with the court or to carry out the process in another appropriate way.

55
Q

Define res judicata

A

The effect of barring another action by an individual to vindicate the same right.

56
Q

What does the Ontario Health Disciplines Act state about limitation periods?

A

..Unless such action is commenced within one year from the date when the person commencing the action knew or ought to have known the fact or facts upon which he alleges negligence or malpractice

57
Q

When does the limitation period begin for children?

A

When the age of majority is reached.

58
Q

What may prejudgment interest be applied to?

A

On goods
- From the date payment was due

Non-pecuniary Damages
- Many jurisdictions have something in place for date of notice of claim until date of judgment

59
Q

How is interest applied in common law provinces?

A

Postjudgment, interest runs from the date of judgment until when the damages are paid.

60
Q

How is interest applied in Quebec?

A

From the day the action was filed to the day it was paid.

61
Q

What legal case established that an employer or principal can be liable in respect to interference of a contractor’s or subcontractor’s operation?

A

Davie Shipbuilding v. Cargill

62
Q

What two legal cases helped contribute to the concept of proximate cause?

A

Laperriere v. The King

Beaudoin v. TW Hand Fireworks

63
Q

What legal case helped establish the relationship between an employer and employee?

A

Lockhart v. CPR